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NYT reporter James Risen asks court to protect sources

Lawyers for New York Times reporter James Risen asked a federal appeals court on Tuesday to uphold a lower court's rulings that federal prosecutors should not be able to question him about most details of his confidential sources for a 2006 book that described a botched Central Intelligence Agency program to sabotage Iran's nuclear program.

Risen's lawyers, Joel Kurtzberg and former U.S. Attorney David Kelley, argued to the U.S. Court of Appeals for the Fourth Circuit that the appeal was premature because while Brinkema seemed to rule out allowing Risen to be questioned directly about the identity of his sources, she said she hadn't made a final decision on all aspects of his testimony and might still require that he answer questions about such points as where he was when he learned certain facts.

The brief for Risen (posted here) also makes a more direct plea to the appeals court to uphold the basic principle of reporter's privilege, a legal protection many courts have recognized to keep journalists from being forced to testify in many civil and criminal cases.

"Confidentiality is essential for journalists to sustain their relationships with sources and to obtain sensitive information from them," Kurtzberg and Kelley wrote. "Without it, the press cannot effectively serve the public by keeping it informed....There is a clear consensus today among federal courts that the reporter’s privilege enhances the political, economic, and social health of our citizenry by allowing the public to make informed decisions."

Risen's legal team also argues that prosecutors should be rebuffed because they made a strategic decision not to present Brinkema with proof that Risen's testimony was essential or critical to their case. That decision may have been made so that prosecutors could go forward with the case against Sterling even if Risen's subpoena was quashed or he simply refused to testify. The prosecution gave no indication of plans to appeal the rulings on Risen's testimony until the case hit a snag over other issues involving a late disclosure by the prosecution of negative information about two planned witnesses.

A showdown in the federal appeals courts over the scope and application of reporter's privilege is highly unusual and has drawn the attention of First Amendment and press advocates. Some involved in the case expect it to reach the Supreme Court.